Cannistraci v. Kirsopp et al
Filing
49
DECISION AND ORDER denying without prejudice to renew 45 Motion in Limine. Signed by U.S. District Judge Mae A. D'Agostino on 6/8/12. (ban)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
____________________________________________
SEBASTIANO CANNISTRACI,
Plaintiff,
vs.
1:10-cv-980
(MAD/DRH)
RODGER KIRSOPP, Individually and
as an agent, servant, and/or employee of the
State of New York; JOHN DOE, whose
name is presently unknown, Individually
and as an agent, servant and/or employee
of the State of New York; and RICHARD
ROE, whose name is presently unknown,
Individually and as an agent, servant
and/or employee of the State of New York,
Defendants.
____________________________________________
APPEARANCES:
OF COUNSEL:
KINDLON & SHANKS, P.C.
74 Chapel Street
Albany, New York 12207
Attorneys for Plaintiff
GENNARO D. CALABRESE, ESQ.
TERENCE L. KINDLON, ESQ.
OFFICE OF THE NEW YORK
STATE ATTORNEY GENERAL
The Capitol
Albany, New York 12224
Attorneys for Defendants
C. HARRIS DAGUE, AAG
KEVIN P. HICKEY, AAG
Mae A. D'Agostino, U.S. District Judge:
DECISION AND ORDER
I. INTRODUCTION
Currently before the Court is Defendant's motion in limine asking the Court to preclude
Plaintiff from presenting the testimony of Connie Ware and Keith Christiansen. See Dkt. No. 451.
II. DISCUSSION1
A.
Connie Ware
Defendant argues that Plaintiff did not disclose Connie Ware as a potential witness in his
Rule 26(a) disclosure or at any other juncture during discovery. See Dkt. No. 45-1 at 2-3. As
such, Defendant contends that Plaintiff should be precluded from calling Ms. Ware as a witness
pursuant to Rule 37(c)(1) of the Federal Rules of Civil Procedure because he does not have
substantial justification for this failure. See id. at 3-4. Plaintiff admits that Ms. Ware's name was
not provided in its initial or any supplemental Rule 26(a) disclosure and, therefore, states that it
will not call Ms. Ware as a witness at trial. See Dkt. No. 46 at ¶ 5.
In light of Plaintiff's indication that he will not call Ms. Ware at trial, the Court denies this
portion of Defendant's motion as moot. See Bravman v. Baxter Healthcare Corp., 842 F. Supp.
747, 748 (S.D.N.Y. 1994) (finding motion in limine seeking to preclude evidence moot when the
plaintiff conceded that it would not introduce the evidence that the defendant was seeking to
preclude).
B.
Keith Christiansen
Defendant contends that Mr. Christiansen, who is a private investigator retained by
Plaintiff to investigate the criminal charges filed against him, should not be allowed to testify
because he will either be offered as an unqualified expert or he will testify solely as to matters of
pure hearsay. See Dkt. No. 45-1 at 5. Specifically, Defendant claims that Mr. Christiansen will
testify regarding out of court statements made to him by Alyssa R. and Kristen S., and will state
The Court refers the parties to its May 16, 2012 Memorandum-Decision and Order for a
complete statement of the underlying facts in this case. See Dkt. No. 29.
1
2
that Kristen S. told him that he called Defendant and informed him that Alyssa R.'s statement was
untrue. See id. at 6.
Plaintiff, however, contends that Mr. Christiansen will not be testifying as an expert and
that his testimony will not be hearsay. See Dkt. No. 46 at ¶ 7. Plaintiff claims that Mr.
Christiansen will be called to testify "concerning how and when" he discovered Alyssa R. and
Kristen S., which he claims is necessary to establish that Defendant acted with malice. See id.
Plaintiff argues that Defendant will not be prejudiced by denying this motion and that he can
object at trial after a question is asked which may elicit potential hearsay testimony. See id. at ¶
8.
In his reply, Defendant argues that "'how and when'" Mr. Christiansen discovered Alyssa
R. and Kristen S. "is wholly irrelevant to plaintiff's claim of malicious prosecution." See Dkt. No.
47 at ¶ 8. Defendant claims that, "[p]ursuant to the Court's own decision on Summary Judgment,
the only dispositive issue remaining in this matter is whether [Defendant] knew of the allege[d]
statement by [Kristen S.] that her daughter's statement was a lie and obtained via fraud." See id.
Defendant further argues that, contrary to Plaintiff's contention, Mr. Christiansen will not provide
factual information that no other witness can provide. See id. at ¶ 10. Specifically, Defendant
argues that Kristen S. can testify regarding the timing of her alleged statement to Defendant and
Alyssa R. can testify regarding the content of her statement to Defendant. See id. at ¶ 11. As
such, Defendant claims that the risks of unfair prejudice, confusion, and the unnecessary addition
of time to the length of this trial all weigh in favor of precluding Mr. Christiansen's testimony
pursuant to Rule 403 of the Federal Rules of Evidence. See id. at ¶ 12.
The purpose of a motion in limine is to allow the trial court to rule in advance of trial on
the admissibility of certain forecasted evidence. See Luce v. United States, 469 U.S. 38, 40 n.2
(1984); see also Palmieri v. Defaria, 88 F.3d 136, 141 (2d Cir. 1996). A court should exclude
3
evidence on a motion in limine only when the evidence is clearly inadmissible on all potential
grounds. See Baxter Diagnostics, Inc. v. Novatek Med., Inc., No. 94-cv-5220, 1998 WL 665138,
*3 (S.D.N.Y. Sept. 25, 1998). Courts considering a motion in limine may reserve decision until
trial so that the motion is placed in the appropriate factual context. See Nat'l Union Fire Ins. Co.
v. L.E. Myers Co. Group, 937 F. Supp. 276, 287 (S.D.N.Y. 1996). Alternatively, the court is
"free, in the exercise of sound judicial discretion, to alter a previous in limine ruling" at trial as
"the case unfolds, particularly if the actual testimony differs from what was contained in the
[movant's] proffer." Luce, 469 U.S. at 41-42.
In the present matter, the Court agrees with Plaintiff that it is premature to preclude this
yet unknown testimony as either hearsay or overly prejudicial. "The Court is unwilling to
speculate, pretrial, as to what statements any witness will or will not make during trial." Picciano
v. McLoughlin, No. 5:07-cv-781, 2010 WL 4366999, *5 (N.D.N.Y. Oct. 28, 2010). Throughout
the course of the trial, Defendant may object to testimony that he believes is inadmissible and the
Court will issue a ruling at that time.2
Based on the foregoing, the Court denies Defendant's motion in limine as premature.
III. CONCLUSION
After carefully reviewing the entire record in this matter, the parties' submissions, and the
applicable law, and for the above-stated reasons, the Court hereby
ORDERS that Plaintiff's motion in limine is DENIED without prejudice to renew; and
the Court further
During trial, Defendant may request a voir dire of Mr. Christiansen outside of the
presence of the jury, if he believes that such a hearing is necessary to protect his rights. See
United States v. Nacchio, 555 F.3d 1234, 1260 (5th Cir. 2009).
2
4
ORDERS that the Clerk of the Court shall serve a copy of this Decision and Order on the
parties in accordance with the Local Rules.
IT IS SO ORDERED.
Dated: June 8, 2012
Albany, New York
5
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?